5361 N. DIXIE HIGHWAY, INC., D/B/A ALI MARKET, RAED KHALIL AND ISAM NASSRIYEH, APPELLANTS,
v.
CAPITAL BANK, A FLORIDA BANKING CORPORATION AND GREAT WESTERN BANK, APPELLEES
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The Fourth District Court of Appeal held that it has jurisdiction to review a trial court's denial of a motion to dissolve a prejudgment writ of garnishment freezing a bank account under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii), as an order determining immediate possession of property. The court reversed prior precedent and resolved a possible conflict with another district court decision.
The court has jurisdiction to review the order denying the motion to dissolve the prejudgment writ of garnishment under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii), as an order determining the immediate possession of property. The prior Fourth District case of Hamilton v. Hanks is not controlling because it was decided under former rules that did not include provisions for review of such orders.
[1] An order denying a motion to dissolve a prejudgment writ of garnishment is an appealable non-final order under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii) as a…
[2] Orders determining the right to immediate possession of property were added to the Florida Rules of Appellate Procedure in the 1977 revision.
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Join FLexlaw to unlock all legal intelligence“we conclude that jurisdiction at minimum, exists under rule 9.130(a)(3)(C)(ii), as an order determining the immediate possession of property”
Establishes the legal basis for appellate jurisdiction over orders denying dissolution of prejudgment writs of garnishment
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Join FLexlaw to unlock all legal intelligenceCapital Bank sued Appellants for alleged debt. A prejudgment writ of garnishment froze Appellants' operating account. Appellants filed a motion to dis…
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PER CURIAM.
Appellees’ motion to dismiss, for lack of appellate court jurisdiction to review a trial court order denying a motion to dissolve a pre-judgment writ of garnishment, is denied. In the underlying action, Capital Bank alleges that Appellants are indebted to the bank. A prejudgment writ froze the Appellants’ operating account. Appellees assert that the order is not an authorized non-final appeal under Florida Rule of Appellate Procedure 9.130. However, we conclude that jurisdiction at minimum, exists under rule 9.130(a)(3)(C)(ii), as an order determining the immediate possession of property. See Barbouti v. Lysandrou, 559 So. 2d 648 (Fla. 3d DCA 1990) (appeal of order denying motion to dissolve prejudgment writ of garnishment freezing bank account); Cerna v. Swiss Bank Corp. (Overseas) SA., 503 So. 2d 1297 (Fla. 3d DCA) (non-final appeal of order denying motion to dissolve pre-judgment writ of attachment and garnishment of bank and stockholder accounts), rev. denied, 513 So. 2d 1060, 1063 (Fla.1987); Transportes Aereos Mercantiles Panamericanos, S.A. v. Banco Cafetero, 451 So. 2d 932 (Fla. 3d DCA 1984) (appeal of denial of motion to dissolve writs of attachment and garnishment).
We recognize that in Hamilton v. Hanks, 309 So. 2d 229 (Fla. 4th DCA 1975) this court held that a similar order was not an appeal-able non-final order. However, Hamilton is not controlling because it was decided under former Florida Rule of Appellate Procedure 4.2 which did not include a provision for review of orders determining the right to immediate possession of property. That section was added in the 1977 revision of the rules.
We acknowledge possible conflict with Ramseyer v. Williamson, 639 So. 2d 205 (Fla. 5th DCA 1994), in which the court dismissed an appeal of a denial of a motion to dissolve a writ of garnishment because the order was not an appealable non-final order under rule 9.130.
Having resolved that there is jurisdiction for a non-final appeal, we need not consider the alternative of treating the appeal as a petition for writ of certiorari.
GLICKSTEIN, STONE and PARIENTE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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In re Amendments to the Florida Rules of Appellate Procedure, 2 So. 3d 89 (Fla. 2008)…solving, or refusing to grant, modify, or dissolve garnishments are appealable under this subdivision. Compare Ramseyer v. Williamson, 639 So. 2d 205 (Fla. 5th DCA 1994) (garnishment order not appealable), with 5361 N. Dixie Highway v. Capital Bank, 658 So. 2d 1037 (Fla. 4th DCA 1995) (permitting appeal from garnishment order and acknowledging conflict). The amendment is not intended to limit or expand the scope of matters covered under this rule. In that vein, replevin and attachment were included as examples…
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Alvaro Martinez, Jr., M.D. v. GOLISTING.COM, Inc., 233 So. 3d 1190 (Fla. 3d DCA 2017)…ndments to the Fla. Rules of Appellate Procedure, 2 So. 3d 89, 93 (Fla. 2008) (noting conflicting authorities in Ramseyer v, Williamson, 639 So. 2d 205 (Fla. 5th DCA 1994) (garnishment order not appealable) and 5361 N. Dixie Highway v. Capital Bank, 658 So. 2d 1037 (Fla. 4th DCA 1995) (permitting appeal from garnishment order and acknowledging conflict)); Fla. R. App. P. 9.130(a)(3)(C)(ii), committee notes (2008 amend.) (same). Accordingly, the rule to show cause is dismissed. See Higgins v. Ryan, 81 So. 3d 58…
Authorities Cited
- Cerna v. Swiss Bank Corp. (Overseas), S.A., 503 So. 2d 1297 (Fla. 3d DCA 1987)
- Ihsan Barbouti v. Loizos Lysandrou, 559 So. 2d 648 (Fla. 3d DCA 1990)
- Hamilton v. Hanks, 309 So. 2d 229 (Fla. 4th DCA 1975)
- Transportes Aereos Mercantiles Panamericanos, S.A. v. Banco Cafetero, 451 So. 2d 932 (Fla. 3d DCA 1984)
- Brown v. State, 639 So. 2d 205 (Fla. 5th DCA 1994)
- Ramseyer v. Williamson, 639 So. 2d 205 (Fla. 5th DCA 1994)